Excesso na legítima defesa

Abstract

The objective of this research is to investigate the imputation of excess in self-defense and establish criteria for its non-punishability, considering the individual's real conditions to represent the demands of using moderate and necessary means in the defense action. It is frequent in the analysis of self-defense to establish the existence of a proportionality between the aggression and the offended reaction, creating a distorted perception of reality, based on unattainable normative demands concerned with the least possible harm to the aggressor. Could aggression be neutralized with fewer firearms? The defender could have fired at the attacker's leg instead of the lethal region. It is found that in certain situations, for the attribution of excess, important factors are neglected in the examination of self-defense, eg, empirical studies of the way in which information is processed and the reaction of the victim's brain, moral disturbance and natural instinct of the victim's self-preservation and the responsibility for the perpetrator in the co-determination of the conflict. These considerations, among others explored in this work, would lead us to recognize that the attribution of excess could not occur in the same way as that of a common crime. The work is divided into three chapters. In the first, the ideological debate underlying legitimate defense is presented; in the second, the objective and subjective elements of legitimate defense are discussed; in the third, the allocation of the excess is analyzed.